Whitehorn v. McCann et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
District Judge S. Kato Crews
Civil Action No. 1:24-cv-01105-SKC-STV
BYRON L. WHITEHORN,
Plaintiff,
v.
BETH McCANN, in her official and individual capacities, et al.,
Defendants.
ORDER GRANTING PLAINTIFF’S MOTION FOR LEAVE TO FILE AN
AMENDED COMPLAINT (DKT. 54) AND SETTING ASIDE CLERK’S
ENTRIES OF DEFAULT
This Order addresses three motions: (1) Defendants Beth McCann, Laura
Mullins, and Danielle C. Robinson’s (“DA Defendants”) Motion to Set Aside Entry of
Default (Motion to Set Aside) (Dkt. 471); (2) Plaintiff Byron L. Whitehorn’s Motion for
Leave to File an Amended Complaint (Motion for Leave) (Dkt. 54), and (3) the DA
Defendants’ Motion to Dismiss (MTD) (Dkt. 48). The Court has reviewed the Motions
and related briefing. No hearing is necessary.
For the reasons discussed below, the Court GRANTS the Motion to Set Aside,
GRANTS the Motion for Leave, and DENIES AS MOOT the MTD. The Court sua
1 The Court uses “Dkt. ___” to refer to entries in the CM/ECF Court filing system.
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sponte ORDERS the Clerk’s Entry of Default against Defendants Steven D. Bishop
and Loretta Beauvais be set aside in light of Plaintiff’s newly amended complaint.
A. 	PROCEDURAL HISTORY
Plaintiff filed his Amended Prisoner Complaint on May 13, 2024. Dkt. 8. The
court previously granted his motion to proceed pursuant to 28 U.S.C. § 1915. Dkt. 6.
On July 25, 2024, the Court ordered the case drawn to a presiding judge (Dkt. 15),
and the Clerk of Court entered a Certificate of Service stating the Clerk’s office mailed
the Certificate of Service along with the Amended Prisoner Complaint and other
filings to the U.S. Marshals Service for service on each of the Defendants (Dkt. 19).
On August 21, 2024, summonses were returned executed for Defendants Steve D.
Bishop, Beth McCann, Danielle C. Robinson, and Lara Mullins. Dkts. 23, 24, 25, 27.
Each was served on August 8, 2024. Id. Answers for these Defendants were due
August 29, 2024. Fed. R. Civ. P. 12(a)(1).
The first service attempt on Defendant Loretta Beauvais, however, failed.
Dkt. 26. On August 30, 2024, the Clerk again filed a Certificate of Service stating his
office had mailed the Amended Prisoner Complaint and other filings to the U.S.
Marshals Service for service on Defendant Beauvais. Dkt. 32. She was served
September 5, 2024, with a responsive pleading due September 26, 2024. Dkt. 36.
Meanwhile, Plaintiff began seeking default judgments against the Defendants.
On September 9, 2024, he filed a Motion for Entry of Default (Dkt. 33) and a Motion
for Default Judgment (Dkt. 34) against the DA Defendants and Defendant Bishop.
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The Clerk, however, declined to enter default because Plaintiff had not complied with
all the requirements for entry of default. Dkt. 35. And this Court denied his motion
for default judgment, without prejudice, because the Clerk had not yet entered
default. Dkt. 37.
Later, on September 23, 2024, Plaintiff filed a renewed motion for entry of
default against the DA Defendants and Defendant Bishop. Dkt. 42. The Clerk entered
default against them on October 1, 2024. Dkt. 44. Next, Plaintiff sought entry of
default against Defendant Beauvais on October 16, 2024 (Dkt. 45), which the Clerk
granted the same day (Dkt. 46).
On November 1, 2024, counsel for the DA Defendants entered appearances and
filed two motions—the Motion to Set Aside (Dkt. 47) and the MTD (Dkt. 48). The
Motion to Set Aside asks the Court to set aside the Clerk’s entries of default against
the DA Defendants. See generally Dkt. 47. The MTD requests dismissal of Plaintiff’s
claims against the DA Defendants under Federal Rule of Civil Procedure 12(b)(6). See
generally Dkt. 48. Plaintiff opposed the relief sought in the Motion to Set Aside
(Dkt. 49) and failed to timely respond to the MTD. Dkt. 55 (Plaintiff’s untimely
response to the MTD). After receiving an extension, the DA Defendants filed a reply
in support of the Motion to Set Aside on December 9, 2024. Dkt. 53. On January 6,
2025, Plaintiff filed the Motion for Leave seeking leave to file an amended complaint.
Dkt. 54.
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B. 	ANALYSIS
1. 	Motion to Set Aside
Rule 55(c) requires a showing of good cause to set aside an entry of default.
Hunt v. Ford Motor Co., 65 F.3d 178 (Table), 1995 WL 523646, at *3 (10th Cir. Aug.
29, 1995) (citing Fed. R. Civ. P. 55(c)). The principal factors in determining whether
a defendant has met the good cause standard are: (1) whether the default was the
result of culpable conduct of the defendant, (2) whether the plaintiff would be
prejudiced if the default should be set aside, and (3) whether the defendant presented
a meritorious defense. Id. (citing In re Dierschke, 975 F.2d 181, 183 (5th Cir. 1992));
Gray v. Knight Sec. & Patrol, Inc, No. 16-cv-03086-PAB-KLM, 2017 WL 11569537, at
*2 (D. Colo. May 26, 2017) (citing Hunt, 1995 WL 523646, at *3). These factors are
not “talismanic”—the court may consider other factors and need not consider all the
factors. Hunt, 1995 WL 523646, at *3. Ultimately, “[g]uiding the Court’s analysis is
the time-honored principle that ‘[t]he preferred disposition of any case is upon its
merits and not by default judgment.’” Gomes v. Williams, 420 F.2d 1364, 1366 (10th
Cir. 1970) (quoted authority omitted).
If the default was the result of the defendant’s culpable conduct, the court may
refuse to set aside the default on that basis alone. Hunt, 1995 WL 523646, at *3
(quoted authority omitted). Generally, a defendant’s conduct is considered culpable if
he has defaulted willfully or has no excuse for the default. Id.; see also Meadows v.
Dominican Republic, 817 F.2d 517, 521 (9th Cir. 1987), cert. denied, 484 U.S. 976
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(1987) (receiving actual notice of complaint and failing to respond is culpable
conduct). But the issue of culpable conduct is not dispositive. See Gray, 2017 WL
11569537, at *2, *3 (finding defendant’s conduct culpable but still setting aside the
entry of default).
First, the Court finds the DA Defendants’ conduct culpable, but only mildly so.
True, they were served the Amended Complaint and failed to answer or otherwise
respond to it. But their counsel explains that there were two simultaneous cases—
one in state court and this case—involving the Plaintiff and the DA Defendants and
concerning the same or similar events that led to confusion for them regarding the
status of this case. Dkt. 47, pp.4-6. And counsel, upon realizing his mistake in this
case, “acted diligently filing this Motion within two days of learning of the entry of
default.” Id. at p.6.
Second, on the countervailing consideration of prejudice to the Plaintiff, the
Court finds that no prejudice exists. Indeed, Plaintiff does not allege any prejudice to
himself in his Response. See Dkt. 49. Rather, he instead relies formulaically on the
DA Defendants’ failure to respond and summarily states he has been penalized. Id.
at ¶7. But “setting aside a default must prejudice plaintiff in a more concrete way,
such as loss of evidence, increased difficulties in discovery, or greater opportunities
for fraud and collusion.” Pharmatech Oncology, Inc. v. Tamir Biotechnology, Inc., No.
11-cv-01490-LTB-KMT, 2011 WL 4550202, at *10 (D. Colo. Oct. 3, 2011) (citations
omitted). Considering this case is in the early stages of litigation, Plaintiff will not be
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unduly prejudiced in posturing this case for a resolution on its merits. See Wright &
Miller § 2699 Fed. Prac. & Proc. Civ. § 2699 (4th ed.) (quoting Jackson v. Delaware
County, 211 F.R.D. 282, 283 (E.D. Pa. 2002)) (“The fact that a plaintiff will have to
litigate an action on the merits rather than proceed by default does not constitute
prejudice.”). And delay or increased litigation costs alone are insufficient to avoid
setting aside the entry of default. Pharmatech Oncology, 2011 WL 4550202, at *10.
Moreover, Plaintiff has since filed his motion seeking leave to file an amended
complaint. Dkt. 54. His desire to file an amended complaint belies any assertion of
prejudice to him.
Third, the DA Defendants filed their MTD the same day they moved to set
aside the entries of default. The MTD sets forth their claimed meritorious defenses,
and without prejudging those defenses, the Court finds their claimed defenses have
sufficient merit for purposes of supporting their Motion to Set Aside. Dkt. 48.
Accordingly, the Court finds good cause to GRANT the Motion to Set Aside.
2. 	Motion for Leave
Plaintiff filed his Motion for Leave seeking leave to file an amended complaint
under Federal Rule of Civil Procedure 15(a). Dkt. 54. The Motion for Leave explains
that he “did not have access to certain exculpatory evidence and timelines. Because
of Plaintiff’s incarceration, due diligence has taken some time.” Id. at p.1. No response
has been filed to date. See D.C.COLO.LCivR 7.1(d).
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The purpose of Rule 15(a) is to facilitate a decision on the merits. Bob Marshall
All. v. Lujan, 804 F. Supp. 1292, 1298 (D. Mont. 1992) (the court’s exercise of
discretion must “be guided by the underlying purpose of Rule 15–to facilitate decision
on the merits, rather than on the pleadings or technicalities.”). Thus, motions to
amend should be freely granted when justice requires. See, e.g., Bellairs v. Coors
Brewing Co., 907 F. Supp. 1448, 1459 (D. Colo. 1995). When considering the “needs
of justice,” the Court must take into account the interests of all parties, including
whether the amendment is futile or will result in undue prejudice. Las Vegas Ice &
Cold Storage Co. v. Far W. Bank, 893 F.2d 1182, 1185 (10th Cir. 1990).
In light of Plaintiff’s claim that his proposed amended complaint (Dkt. 54-1)
contains new allegations of exculpatory evidence that was previously unavailable to
him, the Court finds the interests of justice warrant allowing amendment. And the
court 	finds 	no 	prejudice 	to 	the 	various 	Defendants. 	The 	Motion 	for Leave 	is
GRANTED.
3. 	Entries of Default Against Defendants Bishop and Beauvais
The Clerk of Court entered default against Defendants Bishop and Beauvais
on October 1, 2024, and October 16, 2024, respectively. Dkts. 44, 46. These entries of
default were based on the earlier complaint which is no longer operative considering
the Court has now granted Plaintiff leave to file an amended complaint.
An “entry of default must be set aside [if] it was directed at a superseded
pleading.” Warren v. Green Tree Servicing, LLC, 663 F. App’x 703, 710 (10th Cir.
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2016); see also Adolas, LLC v. Alexander Andrews & Assocs., LLC, No. 19-cv-00881-
DDD-MEH, 2019 WL 13195252, at *1 (D. Colo. Nov. 5, 2019) (“Filing an amended
complaint renders moot a subsequently filed motion for default judgment against a
party whose default was based on the original complaint.”) (surveying cases); and see
Marotta v. Cortez, No. 08-cv-02421-CMA-CBS, 2008 WL 5044496, at *1 (D. Colo. Nov.
20, 2008) (“An amended complaint supersedes the original complaint, rendering it of
no legal effect and waiving all causes of action alleged in the original complaint but
not alleged or incorporated into the amended complaint.”). The Court, therefore, sua
sponte SETS ASIDE the entries of default against Defendants Bishop and Beauvais
as a result.
* 	* 	*
For the reasons shared above, the Court ORDERS the following:
1. 	The 	DA 	Defendants’ 	Motion 	to 	Set 	Aside 	Entry 	of 	Default 	(Dkt. 47) 	is
GRANTED;
2. 	Plaintiff’s Motion for Leave to File an Amended Complaint (Dkt. 54) is
GRANTED;
3. 	the DA Defendants’ Motion to Dismiss (Dkt. 48) is DENIED AS MOOT;
4. 	the Clerk’s Entry of Default against the DA Defendants and Defendants
Bishop and Beauvais is SET ASIDE;
5. 	the Clerk of Court shall docket the proposed Amended Complaint (Dkt. 54-1)
as the Amended Complaint with a separate docket entry; and
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6. 	the United States Marshal is ORDERED to serve the Amended Complaint,
after it is docketed by the Clerk of Court, on Defendants Bishop and Beauvais.
DATED: January 14, 2025.
BY THE COURT:
S. Kato Crews
Unites States District Judge
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